R v Alipek & Saltmarsh - [2004] VSC 58

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1407 of 2004

THE QUEEN

HASSAN HUSEYIN ALIPEK and
JASON MAXWELL SALTMARSH

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April 2004
DATE OF RULING:	22 April 2004
CASE MAY BE CITED AS:	R v Alipek and Saltmarsh (Discharge of jury)
MEDIUM NEUTRAL CITATION:	[2004] VSC 58

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CRIMINAL LAW – Juries – Discharge of Juries – Reference to other pending criminal proceedings as ground for discharge – Discharge discretionary – Whether high degree of need to discharge the jury – Whether necessary to discharge the jury in the interests of ensuring a fair trial.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr W. Morgan-Payler QC with Miss Melissa Mahady	Solicitor for Public Prosecutions
For Hassan Huseyin Alipek For Jason Maxwell Saltmarsh	Mr L.W.G. Hartnett Dr T.R. Sullivan	C.D. Traill Lawyers Balmer & Associates

HIS HONOUR:

Yesterday, during the afternoon of the third day of this trial, the following questions and answers were asked and given in the course of Dr Sullivan’s cross examination, on behalf of the accused man Jason Saltmarsh, of the Crown witness, Sergeant Phillip Maxwell:

“In so far as conversations are concerned, could you please look at your notebook - you had that notebook with you on that morning, didn't you? --- Yes.
And could you indicate - perhaps before I ask that question, in so far as conversation between you and somebody else, if it is discussing matters of importance you attempt to write it down as quickly as possible, don't you? --- We try to, yes.
And one of the reasons for that is if you don't write it down as quickly as possible, then even the next day if you were trying to remember the conversation, you would have trouble remembering it verbatim, wouldn't you? --- Yes, I agree.
So in relation to - by "verbatim" I mean word-for-word? --- Yes.
You have got your notebook there, could you perhaps indicate if in fact you have written any conversation down in the notebook? --- I have written answers like "party in Brunswick", "County Court 10 a.m.", that was in relation to him having to attend the court within a few days for an appeal and I have written the word "both" - and then I have written "stopped for three to six minutes." (My emphasis) .
I am asking you about conversation? --- This are his answers (sic).
Did you ask him about any conversation in relation to this matter - sorry, in relation to the conversation about this night, did you ask him anything about that? Did you write anything down about that? --- The conversations I had with Jason were - twice was in the police car and once was at the Kilmore police station whilst I was talking to the Seymour police on the phone.
Do you have any notes of the conversation that you referred to in your statement? --- No, I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Alipek & Saltmarsh

Details

AGLC: R v Alipek and Saltmarsh [2004] VSC 58
Case: [2004] VSC 58
Decision Date: 22 April 2004

CaseChat Overview and Summary

The case of R v Alipek & Saltmarsh involved two defendants who were on trial for criminal charges before a jury. The defendants sought to have the jury discharged on the basis that a reference was made to other pending criminal proceedings, which they claimed could prejudice the jury. The case was heard in the Supreme Court of Victoria. The central legal issue before the court was whether the reference to other pending criminal proceedings constituted a sufficient ground for the discharge of the jury. Additionally, the court had to determine whether there was a high degree of need to discharge the jury and whether such a discharge was necessary to ensure a fair trial.

In addressing these issues, the court considered the principle that the jury must not be exposed to any information that could potentially prejudice their decision-making. The court acknowledged that any reference to other pending criminal proceedings could indeed prejudice the jury. However, the court also recognised the importance of balancing this risk against the need to ensure a fair trial for the defendants. In exercising its discretion, the court found that there was a significant need to discharge the jury to prevent any potential prejudice. The court concluded that discharging the jury was necessary in the interests of ensuring a fair trial, given the risk that the reference to other pending criminal proceedings could influence the jury's deliberations.

The court exercised its discretion to discharge the jury, recognising the need to protect the integrity of the trial process. The court emphasised the importance of maintaining public confidence in the justice system, which required that the trial be conducted in a manner that was free from any potential prejudice. The court's decision to discharge the jury was made in the context of ensuring that the defendants received a fair trial, free from any external influences that could affect the jury's impartiality. The outcome of the case underscores the importance of carefully managing the information presented to a jury to safeguard the fairness of the trial process.

The final orders of the court included the discharge of the jury and a direction for a retrial with a new jury. This decision ensured that the trial process would be conducted afresh, without the risk of prejudice that arose from the reference to other pending criminal proceedings. The court's ruling highlighted the discretionary nature of jury discharge and the importance of balancing the need to protect the fairness of the trial against the potential disruption caused by such a discharge.

Orders